Clara Prevo v. Federal Deposit Insurance Corporation 01972832 March 10, 2000 Clara Prevo, ) Complainant, ) ) Appeal No. 01972832 v. ) Agency No. 9214 ) 9238 Donna A. Tanoue, ) Chairperson, ) Federal Deposit Insurance ) Corporation, ) Agency. ) ) DECISION Clara Prevo (complainant) timely initiated an appeal of a final agency decision (FAD) concerning her complaints of unlawful employment discrimination on the bases of race (Black), sex (female), and reprisal (prior EEO activity), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. § 1614.405).<2> For the following reasons, the agency's decision is AFFIRMED, in part and REVERSED and REMANDED, in part. ISSUES PRESENTED The issues on appeal are whether complainant has proven by a preponderance of the evidence that she was subjected to unlawful employment discrimination on the bases of her race and sex when: (1) she was harassed by her first-line supervisor (S1: white, male, no prior EEO activity) in the early months of 1992<3>; and (2) the Director of the then RTC Southeast Consolidated Office (D: white, male, prior EEO activity) failed to take action when complainant informed him of S1's harassment on January 29, 1992.<4> Also on appeal is the issue of whether complainant has proven by a preponderance of the evidence that she was subjected to retaliation when: (3) she was denied a detail to the Atlanta Office Subsidiaries Unit on September 4, 1992; (4) she was subjected to the following discipline: a) a Letter of Reprimand dated September 22, 1992 for being Absent Without Leave (AWOL); b) placed on leave restriction on September 22, 1992; c) a second Letter of Reprimand dated November 3, 1992 for being AWOL on October 5, 1992, and d) improperly charged AWOL for October 5, 1992<5>; (5) management denied her request for immediate leave or transfer from the Tampa Office and D's supervision, resulting in her continued subjection to a hostile work environment; (6) she was continuously denied a request to modify the Relocation Authorization to have her stored furniture delivered to her home in Atlanta, rather than a location in Tampa since that office was scheduled to close; (7) she was subjected to an audit of her Travel Vouchers and government-sponsored credit card by the Inspector General's Office in August 1992 at the request of her supervisory personnel; (8) she was not selected for several positions for which she applied at the Tampa and Atlanta offices between August and September 1992<6>; (9) on November 2, 1992, she was notified in writing that her employment would be terminated when the Tampa office closed, based on a recommendation by D, even though she had a multi-year appointment not-to-exceed ("NTE") 1994; and (10) on February 2, 1993, she received an unsatisfactory performance appraisal signed by D. BACKGROUND The record reveals that during the relevant time, complainant was employed as a Special Assistant to the Director, LG-14, at the Resolution Trust Corporation, Southeast Consolidated Office, in Tampa, Florida. She was assigned by D to work with S1 on the Subsidiary Task Force Management team. On February 28, 1992, complainant sought EEO counseling because she believed that S1 was harassing her. Subsequently, complainant filed a formal complaint on April 22, 1992 wherein she described the harassing incidents as follows: (a) her office was relocated during her absence and without her knowledge on February 7, 1992<7>; (b) she was directed to retract a memorandum on January 9, 1992, which she had written to S1 and copied to others; (c) on January 28, 1992, she was given a large work assignment to complete, but was denied support staff assistance as provided to other professionals in similar circumstances; (d) her request for support staff to accompany her to travel on January 24 and 29, 1992, was over-scrutinized; and, (e) S1 objected to her request to be notified in advance, whenever possible, if temporary help would be assigned to use her office during her absence. She also alleged that D failed to take action when complainant informed him of S1's harassing actions. On September 10, 1992, complainant again sought EEO counseling and, subsequently, filed a formal complaint on October 16, 1992. Therein, she alleged that the agency had retaliated against her for the filing of her first complaint and described the incidents noted above (Issue Nos. 3-10). Complainant also alleged that these incidents constituted harassment and created a hostile work environment. Complainant's complaints were consolidated and referred to an independent investigative firm on January 28, 1993, for investigation. For reasons not explained by the agency, complainant's consolidated complaints were referred to a different investigative firm on March 2, 1993. On November 29, 1993, at the conclusion of the investigation, complainant requested that the agency issue a final agency decision. Having received no FAD on November 9, 1994, complainant appealed to this Commission and was told that her appeal was premature and that she must wait to receive a FAD. Finally, on December 31, 1996, more than three years after complainant requested a FAD, the agency issued its decision. The FAD concluded that complainant failed to establish a prima facie case of race or sex discrimination in regard to Issue Nos. 1 (a-e) and 2 because she failed to show any similarly situated employees outside her protected groups who were treated more favorably than she. Despite this finding, the FAD went on to articulate legitimate non-discriminatory reasons for its actions and concluded that complainant had not met her burden of proving discrimination.<8> The FAD then concluded that complainant did establish a prima facie case of retaliation for Issue Nos. 3-10. The FAD held, however, that the agency articulated legitimate non-discriminatory reasons for its actions and that complainant did not prove these reasons to be pretextual. CONTENTIONS ON APPEAL Complainant filed a substantial brief on appeal, to which the agency filed a lengthy response. Complainant then filed a response to the agency's response. The record also contains several letters from complainant to this Commission concerning the agency's failure to issue a final decision. A review of these submissions reveals that, for the most part, complainant merely reiterates contentions raised in her complaints and affidavits. Complainant raises for the first time on appeal, a new contention regarding problems she experienced with the processing of her complaint. Complainant argues that the three year delay between her request for a FAD and the issuance of the FAD should result in the agency losing its right to file a FAD. Complainant correctly notes that she made two requests to this Commission that we draw inferences that the agency's failure to provide a FAD was because it was unfavorable to do so. In its response, the agency reiterates the conclusions made in the FAD and argues that complainant did not provide any new evidence on appeal. In regard to complainant's claim that the three year delay between her request for an agency decision and the issuance of the FAD should result in an adverse inference against the agency, the agency notes that complainant could have filed a civil case in United States District Court, rather than choosing to wait for the FAD. The agency argues that there is nothing in EEOC regulations that denies the agency the power to issue a FAD after a certain amount of time. In conclusion, the agency asks that its FAD be affirmed. ANALYSIS AND FINDINGS As an initial matter, we note that the agency's failure to issue a FAD for more than three years after complainant's request was improper. The agency is required to issue a final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency. See 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.110(b)). Here, complainant made such a request on November 29, 1993, yet the FAD was not issued until December 31, 1996. While we sympathize with complainant's justified anger at this improper delay, it is an insufficient basis on which to make a finding of discrimination. Turning now to the issues addressed in the FAD, in the absence of direct evidence of discrimination or retaliation, the allocation of burdens and order of presentation of proof in a Title VII case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant has the initial burden of establishing a prima facie case of discrimination or retaliation. A prima facie case of discrimination based on race or sex is established where complainant has produced sufficient evidence to show that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; and (3) similarly situated employees outside her protected class were treated more favorably in like circumstances. A prima facie case of retaliation is established where complainant has produced sufficient evidence to show that (1) she engaged in protected activity; (2) the agency was aware of her participation in the protected activity; (3) she was subjected to an adverse employment action; and (4) a nexus exists between the protected activity and the agency's adverse action. Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976); Van Druff v. Department of Defense, EEOC Appeal No. 01962398 (February 1, 1999). Complainant may also meet this burden by presenting other evidence which raises an inference of discrimination. Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975); Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). If complainant has established a prima facie case, the burden of production shifts to the agency to articulate a legitimate non-discriminatory reason for the adverse employment action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981). If the agency articulates a reason for its actions, the burden of production then shifts back to complainant to establish that the agency's proffered explanation is pretextual, and that the real reason is discrimination or retaliation. Throughout, complainant retains the burden of proof to establish discrimination by a preponderance of the evidence. It is not sufficient "to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original). Issue No. 1 (a-e) We first note that the FAD improperly characterized Issue No. 1 (a-e) as alleging disparate treatment. As made clear by complainant's first complaint, the first Counselor's Report and the Report of Investigation, complainant alleged that S1 harassed her due to her race and sex as shown by various incidents (a-e). To prevail on a claim of harassment, a complainant must show that (1) she belongs to a protected group; (2) she was subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive or hostile environment; and (3) the harassment was based on an impermissible factor such as race or sex. See generally, Taylor v. Department of the Air Force, EEOC Request No. 05920194 (July 8, 1992). Here, complainant established that she belonged to protected groups in that she is a female African-American. A thorough review of the record reveals, however, that even if the incidents described by complainant were found to be sufficiently severe or pervasive to create a hostile work environment, there is no evidence that S1's treatment of complainant was motivated by complainant's race or sex. For example, although the abrupt move of complainant's office when she was absent may have been inappropriate, there is no evidence that it was motivated by her race or sex. Similarly, while S1's refusal to attempt to warn complainant in advance if others would be using her office may have been harsh, there is nothing in the record to suggest that S1 refused complainant's request due to her race or sex. At best, complainant has established that she and S1 had a bad personal relationship. This is insufficient to support a finding of race or sex-based harassment. See e.g., Long v. Department of Veterans Affairs, EEOC Appeal No. 01950169 (August 14, 1997) (where confrontations with other employees are the result of personality clashes, rather than race discrimination, race-based harassment is not established). Assuming that complainant also intended to allege that Issue No. 1 (a-e) was a disparate treatment claim based on race and sex, we agree with the agency's finding that complainant has not established a prima facie case of race or sex discrimination . She neither established that similarly situated employees outside her protected classes were treated more favorably, nor offered any other evidence that would give rise to a inference of race or sex discrimination. Issue No. 2 Complainant alleged that when she contacted D about S1's harassing behavior, D failed to act. Complainant's claim does not allege any affect on a term, condition, or privilege of her employment. Rather it deals with the agency's procedure for investigating sexual harassment claims in order to determine whether an agency is vicariously responsible for harassment committed by a supervisor. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). In the case at hand, complainant failed to establish that she suffered harassment at the hands of S1. Moreover, the record establishes that an investigation into complainant's allegations was conducted. Therefore, the agency's finding that no discrimination took place in regard to this issue was proper. Issue Nos. 3-10: Retaliation As an initial matter, we note that despite the agency's treatment of complainant's retaliation issues as only a claim of disparate treatment, complainant contended that she also was subjected to retaliatory harassment. We will therefore first analyze complainant's claim under disparate treatment principles and then apply harassment principles. Disparate Treatment Issue No. 3: Denied Detail to Atlanta Complainant alleged that she was denied a detail to the Atlanta RTC office in September 1992 due to retaliatory animus. Complainant has established a prima facie case of reprisal in regard to this issue. Complainant engaged in protected activity in the form of a formal EEO complaint filed April 22, 1992. In addition, complainant requested counseling for further allegations of discrimination on September 2, 1992. The relevant agency officials acknowledged that they were aware of complainant's protected activity. Moreover, complainant was subjected to an adverse employment action when she was denied a detail to the Atlanta office. Finally, Commission precedent holds that the necessary causal connection may be shown by evidence that the adverse action followed the protected activity within such a period of time and in such a manner that a reprisal motive can be inferred. See Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980); see also EEOC Compliance Manual, Section 8: Retaliation, No. 915.003 at 8-18 (May 20, 1998) . Here, complainant filed a formal complaint five months earlier and had requested further EEO counseling the very month she was denied a detail. Complainant has therefore established a prima facie case of retaliation. The agency articulated a legitimate non-discriminatory reason for its action. The Director of the Office of Subsidiary Management in Atlanta (DSM: white, male, prior EEO activity) testified that complainant requested a detail to his office, but that he informed her that he did not have anything for her. DSM testified that he told complainant that she could apply to the position of Asset Specialist. When he received her SF 171, however, and discovered she had no experience in subsidiary management, he determined that he could not offer her a detail. He then forwarded her SF 171 to other managers in the Atlanta Office. In an attempt to establish pretext, complainant insists that DSM made a prior verbal commitment that she would be offered a detail, and that the only step remaining was a conversation with D. Complainant alleges that after talking with D and learning of her EEO activity, DSM changed his mind about offering her a detail. Complainant provides no evidence to establish her version of events, a version that DSM denies. Complainant also offers no evidence to show that she did have the necessary experience in subsidiary management. She has therefore not proven that the reason articulated by DSM is pretextual, or that the true reason for the denial of a detail was retaliatory animus.<9> Accordingly, the agency's finding of no discrimination in regard to Issue No. 3 is affirmed. Issue Nos. 4, 5, 6 and 7 With regard to Issue Nos. 4-7, after a thorough review of the record, including complainant's submissions on appeal and the agency's response, we find that while complainant established a prima facie case of retaliation, she has failed to establish that the legitimate non-discriminatory reasons articulated by the agency to explain its actions were pretextual.<10> We therefore affirm the agency's findings of no discrimination on these issues. Issue No. 8: Nonselections Complainant alleged that she was not selected for various positions in the Atlanta and Tampa RTC offices due to retaliatory animus. She specifically identified four positions for which she was not selected and indicated she unsuccessfully applied to others as well. In attempting to articulate a legitimate non-discriminatory reason for why complainant did not receive the various promotions for which she applied, the agency relies for the most part on generalized statements from D concerning complainant's lack of experience and reputation for being confrontational with supervisors. D testified that complainant lacked specific hands-on experience in banking, savings and loan, real estate and financial instrument matters. He further noted that a comparison of complainant's SF 171 with those who were selected for higher level positions established her lack of experience. We emphasize, however, that there is no documentation in the file as to the specific requirements of any of the positions complainant named. The record also contains no information on who applied and/or was selected for the positions in question. Indeed, the record contains none of the "SF 171s" that D relied on in his testimony. Moreover, what little evidence there is in relation to this issue casts significant doubt on D's description of complainant's qualifications. Her resume establishes that she graduated with an M.B.A. in Corporate Finance from the Wharton School of Business. It also indicates experience in business development, banking and other economics areas. The position description for the job she held under D's supervision states that knowledge of financial institutions and credit or real estate markets was required. While this is only evidence of the general experience complainant had, with nothing in the record to indicate the requirements of the positions she applied for, the evidence of this experience casts doubt on D's general statement that complainant lacked experience in banking, savings and loan, real estate and financial instrument matters. As for D's statement that complainant gained a reputation for being confrontational with supervisors, we note that complainant's performance appraisal from 12/31/90 - 12/31/91 gave her high marks for her ability to maintain a cooperative working relationship with others, as well as for accepting responsibility and making an extra effort. The reputation she had allegedly developed, as described by D, must therefore not have been made until the early months of 1992 at the earliest. Interestingly, these months were the very time during which complainant first complained about harassment at the hands of S1. We are cognizant that the agency's burden to articulate a legitimate non-discriminatory reason for its actions is not an onerous one. In the case at hand, however, the record is without any independent evidence that demonstrates complainant was less qualified for the positions in question. Moreover, the evidence that does exist in the record casts doubt on D's explanation of complainant's qualifications and "confrontational" reputation. Consequently, the Commission finds that the agency has failed to set forth, with sufficient clarity, reasons for complainant's nonselection for a position in the Tampa office such that she has been given a full and fair opportunity to demonstrate that those reasons are pretext. See Parker v. United States Postal Service, EEOC Request No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997). The agency has therefore failed to provide an articulation of its reasons for not selecting complainant for a position in the Tampa office sufficient to overcome complainant's prima facie case of reprisal. We further find that even assuming the agency satisfied its initial burden, complainant established that the agency's articulation is pretext. Commission precedent holds that when a party fails to produce relevant evidence within its control, the failure to produce such evidence raises an inference that the evidence, if produced, would prove unfavorable to that party. See 29 C.F.R. §1614.108(c)(3)(i); see also, Holm v. Department of Justice, EEOC Request No. 05940916 (December 14, 1995), citing Medinav v. United States Postal Service, EEOC Request No. 05940468 (December 9, 1994). Here, the agency failed to provide any documentation on the positions at issue or the applicants and/or selectees for these positions. This failing on the agency's part makes it impossible to determine the accuracy of D's contention that complainant was not qualified. Moreover, the evidence that was provided casts doubt on the explanation offered by D as to why complainant was not selected. We find this to be an especially appropriate case in which to draw an adverse inference against the agency because, as noted above, the agency completed the investigation three years before it issued a FAD, indicating that it had no shortage of time in which to ensure that the record was complete. We therefore find that if the appropriate documentation had been provided, it would have established that complainant was not selected due to retaliation.<11> Accordingly, we find that complainant was the victim of retaliation when she was not selected for a position in the Tampa office between August and September 1992. The agency articulated a separate reason for not selecting complainant for a position at the Atlanta office. Specifically, VP at the Atlanta Office testified that due to complainant's abuse of her government-sponsored credit card, he did not find her to be an acceptable employee, and would not consider her for a new assignment at the Atlanta office. This is the same reason articulated for denying complainant a transfer to the Atlanta office and, as with the detail issue addressed above, complainant offers nothing to establish that it is pretextual. While VP's description of the credit card abuses committed by complainant cites far more incidents than indicated by other testimony, complainant does not offer any evidence to rebut VP's claim that he refused to condone her selection due to her credit card abuse. We note that no documentation as to the promotions, the applicants, or the selectees were provided in relation to the Atlanta positions either, but given that the management official in charge of the Atlanta Office testified that he opposed the hiring of complainant, the lack of documentation is not as problematic. In other words, even without documentation, the agency has articulated a legitimate non-discriminatory reason for not selecting complainant for a position in the Atlanta office and complainant has not rebutted it. Issue No. 9: Termination Complainant alleged she was retaliated against when she received a letter on November 2, 1992 notifying her that her employment would be terminated when the Tampa office closed. She contended that her termination was based on a recommendation by D and was carried out despite the fact that she had a multi-year appointment NTE 1994. Complainant established a prima facie case of retaliation in that her second complaint was filed in September 1992 and she was notified of her termination in November 1992. We find, however, that the agency articulated a legitimate non-discriminatory reason for complainant's termination. Specifically, the agency noted that the effective closing date of the Tampa office was January 31, 1993, and that all LG employees assigned to the Tampa office, regardless of their not-to-exceed dates and discrimination complaint activity, were notified that they would be terminated as of that date, unless they were hired by other RTC offices. While complainant argued that her EEO activity prevented her from being detailed or assigned to the Atlanta RTC office and thus led to her termination, she has not established that her attempts to transfer to the Atlanta office failed due to retaliatory animus. She has therefore offered no evidence to establish that the reason given for her termination was pretextual or that the true reason was reprisal. Issue No. 10: Unsatisfactory Performance Appraisal The final incident complainant cites as retaliation, is her receipt on February 2, 1993 of an unsatisfactory performance appraisal signed by D. Complainant alleged that her performance was never unsatisfactory and that she was given such an appraisal to help build the case against her and to further retaliate against her for filing EEO complaints. The agency determined that complainant established a prima facie case of retaliation, and we agree. Although the performance appraisal was not sent to complainant until February 1993, it is a rating of her performance during a year when she filed two EEO complaints and the comments on the appraisal make clear that the problems complainant was having with the agency had an effect on the appraisal. The appraisal at issue rates complainant on 23 individual assessment factors. Complainant received a rating of "acceptable" on 10 factors, a rating of "barely acceptable" on 10 factors, and a rating of "unacceptable" on 3 factors. The appraisal was signed by D and included several comments indicating the problems complainant was having in the areas of meeting deadlines, working with others, attitude, dependability and a host of other areas. While the appraisal did not give complainant an overall rating, the breakdown of ratings she received on individual factors, along with the negative comments, indicate that her overall performance was judged to be unsatisfactory. The agency articulated a legitimate non-discriminatory reason for the appraisal. It argued that the appraisal was based on input from four interim supervisors to whom complainant was detailed and that it was an accurate portrayal of her performance over the year. The record illustrates that the very month in which this unsatisfactory performance appraisal was completed, complainant received her normal step increase. The paperwork for this increase includes the comment that complainant was performing at an acceptable level of competence. This pay raise seems to be in direct contrast to the performance appraisal complainant received. Moreover, while complainant was reprimanded for her use of leave and abuse of her credit card during the appraisal period, no management official ever contended that complainant had problems performing her job or meeting deadlines. While the problems complainant had with leave and with her government credit card support a poor rating on a few categories, they do not justify the generally unsatisfactory ratings that complainant received. Her performance appraisal the year before, from December 31, 1990 to December 31, 1991, also completed by D, was highly complimentary. Finally, as noted above, we have found D's explanations in various incidents to be lacking credibility. Our reluctance to credit D's explanations, along with complainant's receipt of her normal step increase, and her good performance ratings up until she began to complain about being harassed, cause us to doubt the agency's articulation. Moreover, no statements for the "four interim supervisors" who allegedly completed the appraisal were provided by the agency. Accordingly, we find the agency's explanation for the unsatisfactory performance rating to be pretextual and that the true reason for the poor performance appraisal was retaliatory animus. Harassment The final issue that must be addressed is whether complainant has proven a case of retaliatory harassment, an issue that the agency failed to address. As noted above, to prevail on a claim of harassment, a complainant must show that (1) she belongs to a protected group (or, in this case, participated in protected activity); (2) she was subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive or hostile environment; and (3) the harassment was based on an impermissible factor such as race, sex or reprisal. See generally, Taylor v. Department of the Air Force, EEOC Request No. 05920194 (July 8, 1992). Here, while complainant described numerous incidents that she felt to be harassing, the discussion above holds that most of the agency's actions had valid explanations, unrelated to retaliation. The only incidents which were found to be based on retaliatory animus were the various nonselections to the Tampa office, and the unsatisfactory performance appraisal. The question therefore becomes whether these incidents rise to the level of harassment that was sufficiently severe or pervasive to create a hostile work environment. In evaluating the degree to which a work environment is sufficiently severe or pervasive to constitute a hostile environment, the Commission has noted that "A hostile environment claim generally requires a showing of a pattern of offensive conduct." See EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990). In the case at hand, complainant cannot show this pattern. First, she did not receive the performance appraisal until she no longer worked at the agency. It therefore cannot be seen as creating an abusive work environment. In terms of the nonselections involving the Tampa office, while we have found that they were based on retaliatory animus, we do not judge them to have created a pattern of offensive conduct. Complainant's claim of retaliatory harassment therefore fails. CONCLUSION Accordingly, after a thorough review of the record, including complainant's submissions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, the agency's finding of no discrimination in regard to Issue Nos. 1 (a-e) and Issue No. 2 is AFFIRMED. The agency's finding of no retaliation in regard to Issue Nos. 3-7, 8 as it relates to positions in the Atlanta office, and 9 is also AFFIRMED. The agency's finding of no discrimination in regard to complainant's non-selection for various positions in the Tampa office between August and September 1992, as well as the finding of no discrimination in regard to the 1991-1992 performance appraisal, is REVERSED and REMANDED in accordance with the ORDER below and applicable regulations. ORDER The agency is ORDERED to take the following actions: 1. The agency shall determine the appropriate amount of back pay, interest, and other benefits due complainant, pursuant to 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.501), no later than sixty calendar days after the date this decision becomes final. This determination shall be based on the assumption that, if not for illegal retaliation, complainant would have been promoted to an LG-15 position within the Tampa office on August 1, 1992<12> and remained in that position until the closing of the Tampa office on January 31, 1993.<13> If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to complainant for the disputed amount with sixty calendar days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 2. The agency shall expunge the 1991-1992 performance appraisal from any personnel or other records that are still maintained and replace it with a Fully Successful performance appraisal. 3. The agency shall provide appropriate EEO training to D and any other management official involved in the failure to select complainant for a position in the Tampa office in August and September 1992, or in issuing the 1991-1992 performance appraisal. Because the RTC ceased operations in 1995, the agency shall provide this training to any of these individuals who are still within its jurisdiction. Within thirty calendar days of the date the training is completed, the agency shall submit to the compliance officer appropriate documentation evidencing completion of such training. If no responsible management official remains in the jurisdiction of the agency, the agency shall, within the same time period, provide appropriate documentation evidencing this fact. 4. In addition, the agency shall consider complainant's claim for compensatory damages incurred as a result of the agency's discriminatory action. Within fifteen days of the date this decision becomes final, the agency shall notify complainant of her right to present evidence to the agency regarding her claim of compensatory damages. Complainant shall provide objective evidence that the damages claimed are a result of the agency's discrimination and objective evidence of the amount of claimed damages. Within thirty days of submission of such evidence, the agency shall issue a final agency decision on the issue, with appropriate appeal rights to the Commission. The Commission further orders that the agency consider complainant's right to any additional attorney's fees and costs in connection with this appeal and the submission of evidence in connection with her claim for compensatory damages. 5. Complainant shall be awarded reasonable attorney's fees, if appropriate, as set forth below. 6. The agency shall comply with the posting order as set forth below. POSTING ORDER (G1092) The agency is ORDERED to post at its regional and/or field office closest to the now closed Tampa-based RTC office, copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H1199) If complainant has been represented by an attorney (as defined by 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. §1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §§1614.407, 1614.408), and 29 C.F.R. §1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. § 2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §1614.409). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, MUST BE FILED WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.604). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199) This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed AND that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: 03/10/00 DATE Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _____________ __________________________ DATE Equal Employment Assistant NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., has occurred at the Resolution Trust Corporation, Southeast Consolidated Office, Tampa, Florida (hereinafter "RTC".) Effective March 21, 1995, the Federal Deposit Insurance Corporation (hereinafter "FDIC") was given authority to process complaints of discrimination filed against RTC and, by statute, RTC ceased operations on December 31, 1995. This Notice is therefore being posted at the FDIC regional and/or field office closest to Tampa, Florida. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The RTC/FDIC supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The RTC was found to have discriminated on the basis of reprisal when an employee was not selected for various positions within the Tampa office and received an unsatisfactory performance appraisal. The FDIC was ordered to: (1) determine the appropriate amount of back pay and other benefits owed complainant from the time of her nonselection to the time of the closing of the RTC Tampa office; (2) expunge the unsatisfactory performance appraisal from all personnel and other records and replace it with a Fully Satisfactory performance appraisal; (3) provide training for the management officials responsible for the retaliation, if any such officials are employed by FDIC; (4) issue an appropriate award of compensatory damages, if it is determined that appellant is entitled; (5) award reasonable attorney's fees, if applicable, and (6) post this notice. The FDIC will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. Date Posted: Posting Expires: 29 C.F.R. Part 1614 1 On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all Federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at WWW.EEOC.GOV. 2 The complaint was filed against the Resolution Trust Corporation (RTC). Effective March 21, 1995, the Federal Deposit Insurance Corporation (FDIC) was given authority to process complaints of discrimination filed against RTC and, by statute, RTC ceased operations on December 31, 1995. 3 The specific incidents of alleged harassment will be discussed below. 4 At some points in the relevant time period, D was complainant's immediate supervisor. The official referenced throughout this decision as S1 acted as complainant's first-line supervisor in January 1992, when she worked on the Subsidiary Task Force of which he was in charge. 5 The FAD treated each leave issue complainant raised as a separate claim. The issues have been consolidated in this decision and referenced as Issue No. 4 because complainant's affidavit makes clear that these leave issues are related. 6 Positions included Project Specialist, LG-15; SWAT Team Member, LG-14/15; Special Assistant to General Manager, LG-15; and Asset Specialist/Commercial Specialist Assets, LG-15 "and others". 7 The FAD lists the date of this event as January 7, 1992, but complainant's complaint clearly indicates the date to be February 7, 1992. 8 The FAD incorrectly analyzed Issue No. 1 (a-e) as one of disparate treatment as opposed to harassment. 9 D also proffered reasons for the denial of complainant's requested detail to Atlanta. One of these reasons, is called into question by the record. D indicated that complainant did not have the requisite experience in banking, savings and loan, real estate, or financial instruments. A review of her resume indicates that she had significant experience in financial planning, banking and other economic areas. Moreover, the position description for the job she held at the time indicated that knowledge of financial institutions and credit or real estate markets was required. Because the explanation offered by DSM--the official responsible for denying the detail in question--is credible and unrebutted by complainant, the less than credible explanation of D does not serve to support a finding of retaliation. It is germane, however, to D's credibility and affects later discussion. 10 We note that the FAD incorrectly characterized Issue No. 5 as "Complainant was continually subjected to a hostile work environment." Although complainant does allege retaliatory harassment, she does so based on all the issues raised in her second complaint. The harassment argument will be analyzed later in this decision. 11 In writing this decision, the Office of Federal Operations attempted to contact someone with the agency who could establish whether it was still possible to obtain documents relating to 1992 RTC promotions. Despite repeated attempts, the OFO staff was not able to find any agency personnel who could address this possibility. 12 As discussed above, the agency failed to provide any information on when selections were made for the positions named by complainant. Because a date is required to determine the back pay and related benefits owed to complainant, we find that, absent discrimination, she would have been promoted on August 1, 1992. 13 A finding of discriminatory nonselection normally results in a order requiring the agency to place complainant in a job. In this case, however, complainant only established that, but for discrimination, she would have been selected to fill a position in the Tampa office. The Tampa office closed effective January 31, 1993, and all LG employees who had not been hired by other RTC offices were terminated. As discussed above, complainant established neither that her termination was discriminatory, nor that her attempts to transfer to the Atlanta office failed due to discrimination. Accordingly, complainant would not have been employed by the agency after January 31, 1993, even absent discrimination. We therefore cannot order the agency to place her in a position and must limit the award of back pay and related benefits to the time period between August 1, 1992 and January 31, 1993.